Photo Attorney

Mar 23, 2009

Daniel Moore Continues His Fight

It's been a year since my last report (see my February 20, 2008 blog) on the status of the University of Alabama's lawsuit against Daniel Moore for his use of UA's trademarks in his paintings. But the battle continues.

The blog at al.com reports on Mr. Moore's recent statements about the lawsuit: "We believe that a jury will quickly figure things out. We want to get to trial and UA doesn't . . . ."

Hooray, Mr. Moore!

Mar 22, 2009

More Websites Grab Photo Rights

Check the terms of the Eclectic Eye Photo Contest - you get a 10% off coupon and the winner gets an "eyewear makeover" (you must be present to win). What does the Eclectic Eye get?

By submitting any photo or information to The Eclectic Eye, you hereby grant to The Eclectic Eye an irrevocable, perpetual, and royalty-free right to use, reproduce, edit, display, transmit, prepare derivative works of, modify, publish, and otherwise make use of the submitted photo.

Vimeo wants you to post your videos. Unfortunately, the terms provide that:

By submitting your Submission . . . VIMEO shall be entitled to unrestricted use of any Submission for any purpose whatsoever, commercial or otherwise, without compensation to the submitter.

Adography matches photographs with advertisers. But the terms make Adography much more than a matchmaker:

When you give us Content or post or display Content on the Site, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright, publicity, and database rights and any and all Intellectual Property Rights you have in the Content, in any media known now or in the future.

While reading the small print is no fun, it's better than shrinking your rights!

Thanks to Sean Locke and Damien Franco for submitting these alerts.

Mar 20, 2009

Worth A Read - Comments on the "Fairey Use"

From IPI PolicyBytes (tongue-in-cheek):
Creativity isn't the hours of work and the years of experience that go into creating the original creative work. Creativity is taking someone's creation and splashing a little yellow paint on it. THAT's creativity. You call it a mash-up, and you're on the cutting edge of creativity, and you are so much more creative than the person who did the original work that they aren't even worth mentioning, unless they have agreed to abandon all their rights and use the borrower's licensing system, Creative Commons.

From the WSJ:
Earlier this year, New York gallery organizer James Danziger was planning a show featuring Obama campaign art, including the Fairey poster. He wondered whose photo had been used, but Mr. Fairey refused to say. Online searching found it to be Mr. Garcia's photo. When the AP learned the poster was based on its photo, it sought standard licensing terms from Mr. Fairey, who refused. . . .

[Manny] Garcia [the photographer of the photo at issue said:]"When I found out [my photo had been used], I was disappointed in the fact that someone was able to go onto the Internet and take something that doesn't belong to them and then use it," he said. "That part of this whole story is crucial for people to understand: that simply because it's on the Internet doesn't mean it's free for the taking, and just because you can take it doesn't mean it belongs to you."

Supreme Court to Consider Copyright Registration Requirements

As reported in my January 25, 2007, blog, courts usually have required plaintiffs to have registered (or have attempted to register and the registration has been refused) the copyright to their work before they may file a copyright infringement action. Specifically, 17 USC Section 411(a)) states that:

[N]o action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute an action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register's failure to become a party shall not deprive the court of jurisdiction to determine that issue.

Recently, however, the U.S. Supreme Court granted a writ of certiorari in the case of Reed Elsevier, Inc. v. Muchnik, No. 08-103. The Court's review will be limited to the question of whether 17 U.S.C. Section 411(a) restricts the subject matter jurisdiction of the federal courts over copyright infringement actions.

As reported by Foley & Lardner, LLP, the case of Reed Elsevier: "involves the proposed settlement of a class-action copyright infringement suit brought mainly by freelance authors against publishers who republished the authors' works on the Internet. Although the named plaintiffs in the suit had obtained copyright registrations for their works, most of the other class members had not. After years of negotiation, the parties sought court approval for a settlement, which is necessary in a class-action suit. The district court approved the settlement, but the Court of Appeals for the Second Circuit vacated that decision, holding that the courts could not approve the settlement because they did not have subject matter jurisdiction over the claims of copyright owners who had not registered their works."

A petition for a writ of certiorari is granted "only for compelling reasons." One of the reasons the Court considers is when a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter. Such is the case here. The circuit courts have disagreed whether a copyright owner must have received the registration certificate (or attempted to, as referenced above) or have only filed for it before filing an infringement suit.

This decision may affect photographers directly. Since too few photographers register their photographs with the US Copyright Office in advance, they must wait until they receive their registration certificate to file suit after finding that their copyright has been infringed. Since the registration process can take months, some of the photographer's rights may be extinguished because the statute of limitations for copyright infringement claims is three years. Further, the cost for an expedited registration is an additional $685.

While we wait to see what the Supreme Court decides about this matter, it's best to not wait. Register your copyrights today!

Thanks to Kyle Zeringue for submitting this topic.

Mar 19, 2009

Copyright Resort for Pets???

Mar 16, 2009

Photo Contests Here and Abroad Grab Rights

The Allegan County Tourist Council is running a photo contest to "Picture Yourself in Allegan County." Unfortunately, the rules provide that:

By entering the contest, photographers agree to have their submitted photograph displayed on the www.VisitAlleganCounty.com or www.AlleganCounty.org websites without any fee or other form of compensation, and agree that the Allegan County Tourist Council may use all submitted photos - whether selected as official "winners" or not - for any future promotional or advertising purposes without further written consent. Images may also be submitted to other tourism-related organizations (including, but not limited to, Travel Michigan and West Michigan Tourist Association) and other media sources for promotional use.

Note that if you submit your photo via a negative, the negative will not be returned! At least a "Photo credit will be given" for the uses.

Across the pond, a respected British wildlife charity, the Wildfowl and Wetlands Trust, and Nikon are sponsoring a photo contest. The rules there state that:

[I]n consideration of their providing the Competition, each entrant grants a worldwide, irrevocable, perpetual licence to WWT to feature any or all of the submitted images in any of their publications, their websites and/or in any promotional material connected to this competition for a period of no more than five years.

Note that in the United States, courts construe ambiguities of contract language against the drafter. Therefore, the "perpetual" license likely would be limited by the five years clause.

Sometimes, it might be more "considerate" to not provide a competition than to grab photo rights.

Thanks to Joel DeYoung and Roger Whitehead for submitting these alerts.

Mar 14, 2009

Judge Orders Injunction to Stop Potential Copyright Infringement

Litigating a copyright infringement claim can take months or even years. In the meantime, the copyright owner may request a court to issue a temporary restraining order ("TRO") for 10 days and then a Preliminary Injunction (both of which are "equitable," rather than legal, remedies) to prevent the continued use of the copyrighted work.

To get the temporary injunction, the copyright owner must show irreparable injury from the use (that money damages alone won't be an adequate resolution) and that the owner is likely to succeed when the infringement case is fully litigated. A court also balances the hardships of the two parties, reviews the feasibility of enforcing the injunction, and considers any equitable defenses of the defendant. Further, the owner must post a bond to ensure the defendant is protected from financial loss due to the decision of the proceeding.

Such was the case when the The Arizona Daily Star ("The Star") newspaper learned that the rock band, "Awful Truth," had used a photograph, taken by a Star employee, of two police officers kneeling over Officer Erik Hite (who was killed in the line of duty) for the cover art of the band's CD, "Kill a Cop for God." The Star asked in its Complaint that the Awful Truth "be temporarily, preliminarily, and permanently enjoined from appropriating, using, copying and/or distributing any copyrighted work owned by Star Publishing, including the Photograph, without the prior written consent of Star Publishing."

As reported by The Star, one of the band members, Damon Pillsbury, doesn't think Awful Truth did anything wrong. He explained that, "We think this whole thing falls under fair use, and that something like that can only be determined on a case-by-case basis." As previously reported, this common excuse for unauthorized uses of copyrighted works can be decided only by a court. But when a judge thinks that the copyright owner is ultimately likely to succeed on the infringement claim, the judge can issue preliminary orders accordingly.

The Court granted The Star's motion for a TRO on February 25, 2009. In its Order, the Court held, among other things, that:

  • Defendants have infringed on Star Publishing's copyright by copying the Photograph and using the Photograph;
  • Star Publishing will suffer irreparable harm if Defendants continue to infringe on Star Publishing's copyright by Defendants' unlicensed commercial use of the Photograph, in a fashion which derogates the value of the Photograph;
  • Star Publishing has no adequate remedy at law (meaning that the award of money at the end of the lawsuit can not repair the damage that may occur in the meantime); and
  • Greater injury will be inflicted upon Star Publishing by the denial of the temporary injunctive relief than would be inflicted upon Defendants by granting of such relief.

The TRO was valid for 10 days or when the Court could render its decision on a preliminary injunction.  Note that the band members are representing themselves (a/k/a "pro se") and thus are likely at a disadvantage when litigating this matter.

On March 9, the Court heard arguments on The Star's request for a preliminary injunction. The Court granted the injunction and again found:

  • It is probable that Plaintiff will succeed in this matter;
  • That there is irreparable harm possible to Plaintiff;
  • Any balance of hardships tips in favor of the Plaintiff;
  • The Plaintiff is the exclusive owner of the copyright for the photograph and it is an original work of art;
  • The Defendants have violated the Plaintiff's copyright by copying and using the photograph for commercial purposes;
  • There is no fair use exception put forth by Defendants.

The Judge then ordered that the Defendants "are enjoined and restrained from either directly or indirectly using or copying the subject material during the pendancy of this case." At trial, the Defendants may be able to prove that the use was a fair use. In the meantime, though, the band can't use the photograph. Thus, injunctions are another powerful tool to use to fight copyright infringement.

Thanks to Joseph J. Beecher for submitting this topic.

Mar 13, 2009

Photography Not Allowed - 26 (Photos of Copyrighted Works)

The Metropolitan Museum of Art has lent to The University of Texas at Austin 28 middle to late 20th century sculptures that have been installed across the campus as part of the university's public art program. While you can look at the sculptures, you are not supposed to touch or photograph them.

As previously reported in my March 20, 2008, blog, courts have disagreed about whether photographing copyrighted works violates the copyrights in the works. UT Austin has taken the position that photographs of the sculptures are not allowed. As explained in its "Frequently Asked Questions,":

The University of Texas at Austin and its affiliates enjoy a limited right to reproduce photographs of Landmarks' projects for educational and promotional purposes. The university does not, however, own the copyright to these works of art and it may not reproduce these images for commercial purposes. Any party who seeks to reproduce art in the Landmarks collection for commercial gain must first obtain permission from the copyright holder, which typically belongs to the artist or the artist's estate.

Until the law is made clearer, it's a risk to photograph other copyrighted works without permission. Always respect the copyrights of others!

Thanks to Rob Strong for submitting this alert and for providing the photograph shown here.

Mar 12, 2009

Newspaper Gets Rights Beyond Sharing Your Vacation Photos

The Atlanta Journal Constitution wants to publish your vacation "getaway" photos. While it's great to share with others your fun adventures, when submitting your photo to the AJC, the rules provide that:

[Y]ou agree that such material is provided to us on a perpetual, irrevocable, royalty-free, unlimited, worldwide, transferable, non-exclusive basis, and that we (including our partners, agents, affiliates and service providers . . . may reproduce, modify, archive, publish, display and otherwise distribute such material as we see fit in any medium now known or hereafter developed, in any manner we see fit (for example, online or offline derivative works) and for any purpose . . . without the requirement of providing you any form of compensation.

This may be something that causes you to want to "getaway!"

Thanks to Ed Selby for submitting this alert.

Mar 6, 2009

Photography Not Allowed - 26 (Irony at its best)

Christopher Knight of the Los Angeles Times reports on his experience while viewing Shephard Fairey's Obama artwork.

Mar 5, 2009

Photo Contest Takes License for Commercial Uses

The Smithsonian Institution is "America's national educational facility with 18 museums, 9 research centers and 120 affiliates around the world." That's impressive and it's good to support such activities.

But it's a shame that the Smithsonian is sponsoring a photo contest wherein the rules provide:

By entering the contest, entrants grant Smithsonian Institution a royalty-free, world-wide, perpetual, non-exclusive license to display, distribute, reproduce, and create derivative works of the entries, in whole or in part, in any media now existing or subsequently developed, for any Smithsonian Institution purpose, including, but not limited to advertising and promotion of the magazine and its Web site, exhibition, and commercial products, including but not limited to Smithsonian Institution publications.

At least, "any photograph reproduced will include a photographer credit." However, "the Smithsonian Institution will not be required to pay any additional consideration or seek any additional approval in connection with such uses."

Whether to agree to such terms by entering the photo contest is your choice. But do so with full knowledge of the ramifications.

Thanks to Bill Stone for submitting this alert.

Mar 3, 2009

UK Rejects Proposal To Expand Copyright Law For "Mashups"

As reported by Out-Law.com, the UK government will not revise its copyright law after reviewing research results in a consultation paper (see page 10) published by the European Commission (EC) on copyright reform. In sum, the EC paper considered the possibility of creating new use exemptions to address the increased creation of "user-created content" (UGC), also known as "mashups," made easier by technological innovations.

But the UK government rejects any proposed change, noting that "many [copyright] stakeholders take the view that the copyright framework already provides a comprehensive list of 'rules' as to what can and cannot be done with works which are protected by copyright" (often referred to as "fair use"). The UK government also expressed its concern about "the extent to which such an exemption might allow others to use the works in a way that the existing rights holders do not approve of and the impact that exemptions in this area might have on remuneration." The government instead encourages new licensing models (such as the Creative Commons licensing models) to allow for such uses. As the government explained, "it is important to consider carefully the potential impact on existing rights holders, in terms of both commercial and non commercial UGC."

Good thinking!

Mar 1, 2009

Ban on Photography of Military Caskets Lifted

As reported by the AP, "an 18-year ban on news coverage of the return of war dead, allowing photographs of flag-covered caskets when families of the fallen troops agree." The AP also issued a statement in response, explaining that it will now be able "to augment our coverage of wars abroad in a more complete fashion by being able to document these sad homecomings of America's war dead with the dignity and respect they deserve."

A Photo Contest With Rules To Love

WiebeTech is sponsoring a photo contest and the winners get a RTX400-QR or a ToughTech data storage drive. While the prizes are great, the rules are even better! Check out the simple and up-front rules (although copyright is mispelled) that give a license of your photos "to publish your entry on the web at a reasonable resolution for screen display in relation to the contest."

Hooray!

Thanks to Eric Welch for submitting this topic.